Excerpt:.....charge.;rex v. alimuddin [1950] a.i.r. all. 77, kishan swarup v. brijendra singh [1982] 2 cr. l.j. 408, bantoari v. state of uttar pradesh [1962] a.i.r. s.c. 1198, in re sekharan [1969] cr. l.j. 1056 : s.c. [1969] a.i.r. mad. 320 and state v. habib suleman (1955) 57 bom. l.r. 1060, referred to. - - it is conceded that the judge could at best alter or suitably modify a charge under section 193, for instance, by adding section 108 instead of section 34 to section 193 of the indian penal code. 408, their lordships of the supreme court have also clearly observed that section 239 lays down (see page 1201) that the sessions court has no power under the code of criminal procedure to drop any charges under which the accused has been committed for trial. in the present ease, this is precisely..........1 to 8 under sections 120-b, 143, 149, 365, 368, 171-f and 193 read with section 34 of the indian penal code. as the ease was considered to be of some importance and had a political tinge about it, the prosecution requested the learned magistrate to hold a committal proceeding and to commit the case to the court of sessions. the learned magistrate, after holding the necessary inquiry, committed the eight accused to the court of sessions. when the case came up for trial, the learned sessions judge framed charges under sections 120-b, 143, 365, 368 and 171-f all read with section 149 and section 148 of the indian penal code, but declined to frame any charge under section 193 read with section 34 of the indian penal code, although a prayer to that effect was made on. behalf of the.....

Judgment:

Gatne, J.

1. A question of some importance has been raised in this revision application and the question is whether in the name of exercising his power under Section 226 of the Code of Criminal Procedure it is competent to a Sessions Judge to delete a charge altogether when an accused person is committed to his Court on that charge.

2. The facts necessary to be stated for this purpose are briefly these. In 1967, one Sonu Bhuwad applied for a Congress ticket to contest the Zilla Parishad elections from Tala constituency in Taluka Mangaon, District Kolaba. He was not, however, successful in getting that ticket and hence he changed over to Sampurna Maharashtra Samiti and that party gave him the necessary ticket and he fought and won the election. As a result of the election, the Mangaon Taluka Panchayat Samiti which consisted of 17 seats comprised 9 Samiti candidates versus 8 Congress candidates. In that situation Sonu Bhuwad was naturally considered to be the decisive factor. Elections for the posts of Chairman and Deputy Chairman of the Taluka Panchayat Samiti were to be held on August 16, 1967 and the case of the prosecution was that in order to ensure that, Sonu Bhuwad would cast his vote in favour of the Congress candidate, he was taken to Pen by complainant Salunkhe on August 13, 1967. When Salunkhe and Bhuwad were returning to Mangaon the same evening, their jeep was, according to the story of the prosecution, halted by a number of persons, including accused Nos. 1 to 4, at a spot near Kolad on Bombay-Goa Road. Those persons inquired if Bhuwad was in the jeep. In the meantime, some more persons joined the mob and in all 100 or 150 persons had collected. Accused Nos 5 to 8 were, according to the prosecution, among them. All the eight accused, according to the prosecution, removed Bhuwad from the jeep and he was thereafter kidnapped in the car of accused No. 1 to a place known as Indapur and detained there till August 16, 1967. On the 16th, Bhuwad was taken to Mangaon in the hope that he would cast his vote in favour of the Samiti candidate, but as things would have it, he cast his vote in favour of the Congress candidate. Members of the Samiti group, including accused Nos. 1 to 8, having learnt that, the story of the prosecution was that these accused again put Bhuwad in a car and took him to Roha where he was coerced to swear an affidavit before the Taluka Executive Magistrate.

3. On August 13, 1967, a complaint in this behalf was filed by Salunkhe and the matter having been investigated by the State C.I.D. a charge-sheet was filed against accused Nos. 1 to 8 under Sections 120-B, 143, 149, 365, 368, 171-F and 193 read with Section 34 of the Indian Penal Code. As the ease was considered to be of some importance and had a political tinge about it, the prosecution requested the learned Magistrate to hold a committal proceeding and to commit the case to the Court of Sessions. The learned Magistrate, after holding the necessary inquiry, committed the eight accused to the Court of Sessions. When the case came up for trial, the learned Sessions Judge framed charges under Sections 120-B, 143, 365, 368 and 171-F all read with Section 149 and Section 148 of the Indian Penal Code, but declined to frame any charge under Section 193 read with Section 34 of the Indian Penal Code, although a prayer to that effect was made on. behalf of the prosecution. He took the view that since Bhuwad himself was not being prosecuted for making a false affidavit or for fabricating false evidence for the purpose of being used in a judicial proceeding, the charge under Section 193 read with Section 34 of the Indian Penal Code was not competent and was patently erroneous and it was within his power to delete that charge under Section 226 of Code of Criminal Procedure.

4. The grievance of the State in this revision application is that the learned Sessions Judge had no such power to delete the charge under Section 193 read with Section 34 of the Indian Penal Code. It is conceded that the Judge could at best alter or suitably modify a charge under Section 193, for instance, by adding Section 108 instead of Section 34 to Section 193 of the Indian Penal Code.

5. In order to understand this grievance, it is necessary to note the provisions of Section 215 of the Code of Criminal Procedure, Section 215 says:

A commitment once made under Section 213 by a competent Magistrate or by a Civil or Revenue Court under Section 478, can be quashed by the High Court only, and only on a point of law.

A plain reading of this section is enough to show that the Sessions Judge, who tries the case committed to him, has no power to quash the commitment. Section 226 of the Criminal Procedure Code, on which the learned Sessions Judge has in this case relied, provides:

When any person is committed for trial without a charge, or with an imperfect or erroneous charge, the Court, or, in the case of a High Court, the Clerk of the State, may frame a charge or add to or otherwise alter the charge, as the case may be, having regard to the rules contained in this Code as to the form of charges.

The first illustration below the section says: 'A is charged with the murder of C. A charge of abetting the murder of C may be added or substituted.' According to the second illustration, when A is charged with forging a valuable security under Section 467 of the Indian Penal Code, a charge of fabricating false evidence under Section 193 may be added. The third illustration says that where A is charged with receiving stolen property knowing it to be stolen and in the trial it incidentally appears that he has in his possession instruments for the purpose of counterfeiting coin, a charge under Section 235 of the Indian Penal Code cannot be added. These illustrations serve the purpose of indicating the limits within which the powers under Section 226 of the Code of Criminal Procedure are intended to be exercised.

6. In any case, it is obvious from a comparison of Sections 215 and 226 of the Code of Criminal Procedure, that the powers under Section 226 have got to be so exercised as not to render Section 215 nugatory. It is not, therefore, open to the learned Sessions Judge to virtually quash a commitment in the name of amending or altering the charge under Section 226 of the Code of Criminal Procedure. In the present case, what the learned Sessions Judge did was to delete the charge under Section 193 read with Section 34 of the Indian Penal Code altogether. He seems to have done so because of his view that since Bhuwad, who actually swore the alleged false affidavit and thereby fabricated false evidence, was not going to be prosecuted but was, on the other hand, going to be examined as a witness on the side of the prosecution. But in taking this view, the learned Sessions Judge apparently lost sight of the provisions of Section 108 of the Indian Penal Code. Section .108 of the Indian Penal Code provides that a person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing' an offence with the same intention or knowledge as that of the abettor. There are three Explanations below this section and two of them deserve to be noted in this proceeding. According to Explanation 2, to constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused. One illustration given below this explanation says that if A instigates B to murder C and B refuses to do so, A is still guilty of abetting B to commit murder. It is, therefore, clear that in order to constitute an offence of abetment, it is not necessary that the offence which is said to have been abetted must actually be committed. In the present case, Bhuwad may not be held to have committed the offence of fabricating false evidence, because whatever affidavit he, according to the prosecution, swore it was done as a result of the coercion and pressure exercised by accused Nos. 1 to 8. Therefore, Bhuwad may not be said to have committed the offence under Section 193 of the Indian Penal Code, but that is no ground for saying that accused Nos. 1 to 8 could not be said to have abetted the commission of that offence. Explanation 3 below Section 108 says that it is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge. Therefore, in the present case although there may be no guilty intention or knowledge on the part of Bhuwad, that could be no ground for refusing to frame a charge under Section 108 of the Indian Penal Code against accused Nos. 1 to 8.

7. In this very connection, a reference may usefully be made to the decision in Emperor v. Chaube Dinkar Rao I.L.R.(1933) All. 654. The facts of that case were that while a suit was pending before a Subordinate Judge, he was approached by one J who told him that the plaintiff would give him Rs. 10,000 if he would decree the suit. The Judge at once turned him out of the house. A few days later, one M, who was a Pujari of the plaintiff, came to see the Judge at his house. The Judge had reason to suspect him to be an emissary of the plaintiff for the purpose of offering him a bribe; and with the intention of setting a trap for the man the Judge himself suggested his willingness to take a bribe, and an amount and a date were settled. On the date fixed M and D, the son of the plaintiff, came with the money and handed it over to the Judge, whereupon they were caught by certain officers who had been concealed in the house by the Judge. J, D and M were put on their trial under Section 161/116 of the Indian Penal Code and all of them were acquitted by the Sessions Judge. On appeal by the local Government, it was held that as J did not offer any bribe nor was he or claimed to be an agent or representative of the plaintiff, his statement, or expression of opinion, that the plaintiff would be willing to offer a bribe did not amount to an abetment of the offence under Section 161 of the Indian Penal Code, and he was rightly acquitted. As regards D and M, it was held that the bribe givers were guilty of abetment of an offence under Section 161, although they only complied with a demand made by the public servant, and although the public servant had no guilty intention of receiving the money as a bribe. Then it was pointed out that Explanation 3 of Section 108 of the Indian Penal Code makes it clear that the person abetted need not have any guilty intention in committing the act, so the fact that the Judge took the money without any guilty intention was immaterial, so far as the offence of abetment was concerned.

8. The learned Sessions Judge was not, therefore, right in taking the view that the charge under Section 193 of the Indian. Penal Code against accused Nos. 1 to 8 could not be competent unless Bhuwad also was arraigned before the Court as one of the accused. In any case, it was not open, to the learned Sessions Judge to omit the charge on that ground. It was, of course, open to him to try the offence and give a decision according to his own light. If it was his view that the charge was without any foundation, it was open to him to make a Reference to this High Court for quashing the charge under Section 215 of the Code of Criminal Procedure.

9. This view finds support in a number of cases, to which a reference was made in the course of the arguments at the Bar. In Rex v. Alimuddin : AIR1950All77 , the accused was committed under Section 120-B of the Indian Penal Code and the Sessions Judge while amending the charge omitted the charge under Section 120-B altogether and substituted a charge under Section 109 of the Indian Penal Code. The High Court at Allahabad had, therefore, to consider the question whether it was open to the Sessions Judge to do so and it was held that the charge under Section 120-B is about a substantive offence described in that section and the charge under Section 109 could not take the place of a charge under Section 120-B. Hence, where a person is committed to the Sessions on a charge under Section 120-B, Penal Code and the Sessions Court in amending the charges omits the charge under Section 120-B and substitutes one under Section 109, Penal Code, and it is objected that the Sessions Court has no power to withdraw a charge on which a person has been committed, the objection cannot be met by saying that the Sessions Court has not dropped the charge under Section 120-B but merely substituted a charge under Section 109 in its place. In Kishan Swarup v. Brijendra Singh [1962] 2 Cr. L.J. 408, the learned Magistrate framed a charge under Section 219 of the Indian Penal Code against one of the accused and a charge under Section 219 read with Section 109 against another accused and committed both the accused to stand their trial before the Court of Sessions. 'When the case came up for trial before the learned Assistant Sessions Judge, Agra, he struck off the charges framed by the Magistrate and substituted new and fresh charges under Sections 218 and 210 of the Indian Penal Code against the two accused respectively and the High Court held that the Sessions Judge has no power to quash a charge framed by the committing Magistrate and substitute a new charge in the name of exercising powers under Sections 226 and 227 of the Code of Criminal Procedure.

10. In Banwari v. State of Uttar Pradesh [1962] 2 Cr.L.J. 408, their Lordships of the Supreme Court have also clearly observed that Section 239 lays down (see page 1201) that the Sessions Court has no power under the Code of Criminal Procedure to drop any charges under which the accused has been committed for trial. He can, in the exercise of the powers under Section 226 of the Code of Criminal Procedure, frame a charge, or add to or otherwise alter the charge as the case may be, in cases where a person is committed for trial without a charge or with an imperfect or erroneous charge. These observations of the Supreme Court have been followed in In re Sekhafan : AIR1969Mad320 . After referring to Sections 226 and 227 of the Code of Criminal Procedure, it has been pointed out (p. 1057) :

It is very clear from both, the provisions mentioned above that a Sessions Judge cannot altogether omit a charge which has been framed by the committal court and on which the trial has to take place. The Sessions Judge in such a case must proceed with the charge and ultimately may acquit if the charge could not be sustained. There cannot be any objection at all on the same set of facts to alter the charge under Section 307 to an allied charge or to an inferior charge, if the records warrant any such alteration. It will not amount to an omission.

11. The position that emerges from these authorities, therefore, is that while it is competent to the Sessions Judge to alter the charge to an allied charge or to an inferior charge even before the commencement of trial, he cannot omit a charge altogether. In the present ease, this is precisely what the learned Sessions Judge did. The learned Sessions Judge, it appears, has relied on some of the observations of this High Court in State v. Habib Suleman : AIR1956Bom450 . In that case it has no doubt been held that a Sessions Judge is not bound to frame the charge in the same terms in which it has been drawn up by the committing' Magistrate, but there is certainly nothing in that case to warrant the view that the Sessions Judge can under Section 226 of the Code of Criminal Procedure delete a charge altogether when the accused person has been committed to his Court on that charge. The learned Sessions Judge has quoted the following paragraph from the judgment of this Court:

Similar defects have been noticed by us in other cases. We would, therefore, advise all Sessions Judges and Magistrates to devote their personal attention to this matter and see that the charges are framed properly, both in order to enable the prosecution to know precisely what facts they have to prove and also in order to give the accused a clear notice of the case he has to meet. It may here be observed that a Sessions Judge is not bound to frame the charge in the same terms in which it has been drawn up by the committing Magistrate. Under Section 226 the Sessions Court has the power to alter or modify the charge framed by the committing Magistrate in such manner as it deems proper.

There is hardly anything in these observations to indicate that while exercising his power under Section 226 of the Code of Criminal Procedure it is open to the Sessions Judge to delete a charge altogether. Such a course is indeed prohibited by Section 215 of the Code of Criminal Procedure, to which a reference has already been made.

12. The submission of Mr. Kamat, appearing on behalf of the respondents, was that although the Sessions Judge was not competent to delete the charge under Section 193 read with Section 34 of the Indian Penal Code, it was open to this Court to do so. But having regard to the materials in the case, it is, in my opinion, difficult to delete the charge under Section 193 altogether. For reasons already indicated the proper charge that could be framed in this case would be one under Section T.93 read with Section 108 of the Indian Penal Code against each accused.

13. The Revision Application filed by the State is accordingly allowed, the order of the learned Sessions Judge deleting the charge under Section 193 read with Section 34 of the Indian Penal Code is set aside and he is hereby directed to include in the charges a charge under Section 193 read with Section 108 of the Indian Penal Code against each accused. Rule made absolute.